IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

: 

LIBERTARIAN PARTY OF OHIO, KEVIN : Case No. 2:11-CV-722 

KNEDLER, and MICHAEL JOHNSTON : 

 : 

Plaintiffs, : 

 : JUDGE ALGENON L. MARBLEY 

 v. : 

 : 

JON HUSTED, : MAGISTRATE JUDGE NORAH KING 

 : 

Defendant. : 

 : 

OPINION & ORDER

I. INTRODUCTION 

 This matter is before the Court on the Motion of Plaintiffs Libertarian Party of Ohio 

(“LPO”), Kevin Knedler, and Michael Johnston for a Preliminary Injunction. (Dkt. 5.) Plaintiffs 

seek to enjoin Defendant Jon Husted, the Ohio Secretary of State, from enforcing H.B. 194’s 

changes to O.R.C. §§ 3501.01 and 3517.01 and to restore the Libertarian Party of Ohio’s ballot 

access rights. For the following reasons, the Motion is GRANTED. 

II. BACKGROUND 

 This is the third time in five years that the Libertarian Party of Ohio has come before this 

Court to challenge Ohio’s ballot access laws. In Libertarian Party of Ohio v. Blackwell, 462 

F.3d 579 (6th Cir. 2006), the Sixth Circuit found that the combination of Ohio’s November filing 

deadline for new political parties and its signature requirement that new parties submit signatures 

from voters equal to 1% of the total vote cast in the last election for President or Governor was 

unconstitutional. The Ohio Legislature failed to respond to this ruling. As a result, Ohio’s 

Secretary of State administratively adopted new ballot access rules. The Secretary changed the 

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signature requirement from 1% to 0.5%, and moved the filing deadline 20 days closer to election, 

from 120 to 100 days before the primary. The LPO challenged these rules. In Libertarian Party 

of Ohio v. Brunner, 462 F.Supp.2d 1006 (S.D. Ohio 2008), this Court found that the Ohio 

Secretary of State did not have the authority to set election rules. In the alternative, the Court 

found that the Secretary’s interim filing deadline and interim signature requirement would likely 

be found unconstitutional. 

 Following the decision in Brunner, this Court found that the LPO had the requisite 

community support to merit ballot access, and ordered that the LPO, along with three other 

minor parties, be placed on Ohio’s 2008 election ballot. The Secretary entered into a consent 

decree agreeing not to enforce her interim requirements, and adopted Directive 2009-21, which 

guaranteed that the LPO (and the three other minor parties) had continued ballot access. On 

January 6, 2011, the Secretary reinstated Directive 2009-21 in Directive 2011-01, which 

continued ballot access for the LPO in 2011 and beyond. 

On July 1, 2011 Ohio Governor Kasich signed Am. Sub. H.B. 194 into law. The bill is 

scheduled to become effective on September 30, 2011. It makes changes to provisional ballot 

law, voter identification laws, absentee voting, voter eligibility, and ballot access for political 

parties. This litigation is focused on the changes to ballot access for political parties. In 

particular it focuses on amendments to O.R.C. § 3501.01(E)1

 and O.R.C. § 3517.01(A)(1).2 In 

 

1

 O.R.C. § 3501.01(E) was amended in the following manner, with the strike-through indicating the deletion of 

existing language: 

(E)(1) “Primary” or “primary election” means an election held for the purpose of nominating persons as 

candidates of political parties for election to offices, and for the purpose of electing persons as members of 

the controlling committees of political parties and as delegates and alternates to the conventions of political 

parties. Primary elections shall be held on the first Tuesday after the first Monday in May of each year 

except in years in which a presidential primary election is held. 

(2) “Presidential primary election” means a primary election as defined by division (E)(1) of this section at 

which an election is held for the purpose of choosing delegates and alternates to the national conventions of 

the major political parties pursuant to section 3513.12 of the Revised Code. Unless otherwise specified, 

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effect, these changes did little to change the rules governing ballot access. The Sixth Circuit 

found that the combination of the signature requirement with the early filing deadline was 

unconstitutional. The Legislature amended the filing requirement by a mere 30 days, and did 

nothing to the signature requirement. Thus, the bill requires that new parties qualify for Ohio’s 

ballots no later than 90 days before the state’s primaries which, under H.B. 194, are to take place 

on the first Tuesday following the first Monday in May. This date applies in both presidential 

and non-presidential primary cycles. Parties that did not receive 5% of the vote for Governor or 

President in the last election still must collect signatures from voters equal to 1% of the total vote 

cast in the last election for President or Governor. All that is different is that the party must file 

these signatures, not 120 days, but 90 days before the May primary. 

As some Ohio citizens feel that these changes will restrict ballot access and contribute to 

voter suppression, the bill is currently the subject of a referendum effort. If referendum 

supporters can collect 231,147 signatures by September 29, 2011, then the bill will be stayed 

until it is voted on the Ohio electorate in the November 2012 election. 

 presidential primary elections are included in references to primary elections. In years in which a 

presidential primary election is held, all primary elections shall be held on the first Tuesday after the first 

Monday in March except as otherwise authorized by a municipal or county charter.

2

 O.R.C. § 3517.01(A)(1)was amended in the following manner, with the strike-through indicating the deletion of 

existing language and bold indicating the addition of language: 

(A)(1) A political party within the meaning of Title XXXV of the Revised Code is any group of voters that, 

at the most recent regular state election, polled for its candidate for governor in the state or nominees for 

presidential electors at least five per cent of the entire vote cast for that office or that filed with the 

secretary of state, subsequent to any election in which it received less than five per cent of that vote, a 

petition signed by qualified electors equal in number to at least one per cent of the total vote for governor 

or nominees for presidential electors at the most recent election, declaring their intention of organizing a 

political party, the name of which shall be stated in the declaration, and of participating in the succeeding 

primary election, held in even-numbered years, that occurs more than one hundred twenty ninety days after 

the date of filing. No such group of electors shall assume a name or designation that is similar, in the 

opinion of the secretary of state, to that of an existing political party as to confuse or mislead the voters at 

an election. If any political party fails to cast five per cent of the total vote cast at an election for the office 

of governor or president, it shall cease to be a political party. 

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On August 5, 2011, the Secretary sent the LPO a letter indicating that the directives that 

Secretary Brunner had issued were now void. The LPO contends that this letter indicates the 

Secretary intends to use H.B. 194 to strip the LOP of its ballot access. Thus, the LPO posits that 

as of September 30, 2011, it will not be qualified for the November 2011 ballot. It challenges 

this removal. The evidence before the Court indicates that the LPO will be on the November 

2011 ballot. The Deputy Assistant Secretary of State, Michael Damschroder, stated in an 

affidavit that: “HB 194 and the Secretary of State’s letter of August 5, 2011 notwithstanding, 

Libertarian candidates for partisan municipal offices certified by a county board of elections to 

appear on the November 8, 2011 general election ballot on which all candidates were permitted 

to appear with a party affiliation (or alternate label as permitted by state law when the candidate 

has filed as an independent) will not have the label ‘Libertarian’ removed from the ballot aside 

those candidates’ names.” His testimony at the Preliminary Injunction hearing on August 30, 

2011 was consistent with this statement. 

 The LPO also argues that H.B. 194’s changes requiring the party to submit the required 

signatures 90 days before the primary ballot, in other words by February 8, 2012, in order to 

qualify for the 2012 ballot are unconstitutional. 

III. LAW AND ANALYSIS 

 Husted argues that the LPO’s claims are not yet ripe. As a threshold matter, this Court 

will address the ripeness challenge before proceeding to the merits. 

A. RIPENESS 

The State argues that the LPO’s claim is not ripe. In order to determine if a claim is ripe, 

the Court will consider three factors: (1) the likelihood that the harm alleges by the Plaintiffs will 

ever come to pass; (2) whether the factual record is sufficiently developed to produce a fair 

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adjudication of the merits; and (3) the hardship to the parties if judicial relief is denied at this 

stage of the proceedings. Warshak v. United States, 490 F.3d 455, 467 (6th Cir. 2007). 

The State argues that because the bill is not currently effective, and may not ever become 

effective due to the referendum effort, it is unclear if the Plaintiffs will ever suffer any harm as a 

result of this bill. Thus, the State asserts, the Plaintiffs cannot meet prong (1) of the three-factor 

test and the claim is not ripe. 

This argument is not compelling. The Court makes decisions based on the realities it 

confronts, not on mere possibilities. As the record currently stands, the bill is to become 

effective in less than a month. The State has already begun taking steps to enforce the new law. 

In fact, it has already notified the LPO that as a result of the law, the LPO is not currently a 

qualified party for the 2012 election. The State cannot take actions based on the law, yet 

simultaneously argue that the law in not ripe for challenges. As a result of the State’s actions, 

the Plaintiffs may be harmed. Thus, the case is ripe for consideration. 

B. MERITS 

In order to obtain a preliminary injunction, this Court balances the following four factors: 

“(1) whether the movant has shown a strong likelihood of success on the merits; (2) whether the 

movant will suffer irreparable harm if the injunction is not issued; (3) whether the issuance of the 

injunction would cause substantial harm to others; and (4) whether the public interest would be 

served by issuing the injunction.” Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 

566, 573 (6th Cir. 2002). 

 

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1. Likelihood of Success on the Merits 

The state’s amendments to O.R.C. § 3501.01(E) and O.R.C. § 3517.01(A)(1) do little to 

address the concerns of the Sixth Circuit in Blackwell and of this Court in Brunner.

3

 The central 

issue before the Court is whether the Ohio election laws impermissibly burden the plaintiff’s 

rights to free speech and association under the First Amendment. The state laws at issue burden 

two different, but overlapping, rights. First, they infringe upon “the right of individuals to 

associate for the advancement of political beliefs,” and second, “the right of qualified voters, 

regardless of their political persuasion, to cast their votes effectively.” Williams v. Rhodes, 393 

U.S. 23, 30 (1968). These rights are critically important to the success of our representative 

democracy. See California Democratic Party v. Jones, 530 U.S. 567, 574 (2000) 

(“Representative democracy in any populous unit of governance is unimaginable without the 

ability of citizens to band together in promoting among the electorate candidates who espouse 

their political views.”); Burdick v. Takushi, 504 U.S. 428, 433 (1992) (noting that “[i]t is beyond 

cavil that voting is of the most fundamental significance under our constitutional structure”) 

(internal citation omitted)). 

 Nevertheless, states “may, and inevitably must, enact reasonable regulations of parties, 

elections, and ballots to reduce election- and campaign-related disorder.” Timmons v. Twin 

Cities Area New Party, 520 U.S. 351, 358 (1997). With this in mind, the Supreme Court 

established an analytical framework in Anderson v. Celebrezze, 460 U.S. 780, 786 (1983) and 

Burdick v. Takushi, 504 U.S. 428, 433 (1992) to analyze election laws. As the Sixth Circuit 

explained in Blackwell: 

 

3

 While the holdings of Blackwell and Brunner are limited to presidential election years, the analysis these cases 

undertake in order to determine the severity of the burdens placed on political parties attempting to organize is 

applicable to all election cycles, both presidential and non-presidential. 

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First, the court looks at the “character and magnitude of the asserted injury” to 

petitioner's constitutional rights. Anderson, 460 U.S. at 789. The court must then 

“identify and evaluate the precise interests put forward by the State as 

justifications for the burden imposed by its rule.” Id. If petitioner's rights are 

subjected to “severe” restrictions, “the regulation must be ‘narrowly drawn to 

advance a state interest of compelling importance.’ ” Burdick, 504 U.S. at 434 

(quoting Norman v. Reed, 502 U.S. 279, 289 (1992)). But if the state law imposes 

only “reasonable, nondiscriminatory restrictions” upon the protected rights, then 

the interests of the state in regulating elections is “generally sufficient to justify” 

the restrictions. Id. (quoting Anderson, 460 U.S. at 788). 

Blackwell, 462 F.3d at 585-87. 

a. Magnitude of the Burden 

 Following the Anderson/Burdick framework, this Court must first determine if “character 

and magnitude of the asserted injury” renders it severe. Blackwell, 462 F.3d at 585. The LPO 

identifies the injury as follows: the collective impact of the state’s requirements—that to achieve 

ballot access a party must: (1) obtain signatures from 1% of the voters in the last gubernatorial 

election; and (2) file then 90 days before the primary—unconstitutionally burdens the First 

Amendment rights of the Libertarian Party and its supporters. Deadlines so far in advance of the 

election force minor parties to recruit candidates at a time when major party candidates are not 

known and when voters are not politically engaged. See Blackwell, 462 F.3d at 594; see also 

Council of Alternative Political Parties v. Hooks, 121 F.3d 876, 880 (3d Cir. 1997) (finding that 

an April deadline, which was 60 days in advance of the primary, required minor parties to rally 

support “when the election is remote and voters are generally uninterested in the campaign”). In 

effect, these deadlines protect the two major parties at the expense of a more vigorous, 

deliberative democracy. See Blackwell, 462 F.3d at 594. Thus, minor parties are limited in 

attracting candidates to the ballot, and the citizenry may be limited in their ability to cast votes 

for individuals who represent their beliefs or values. As “[t]he ability of a political party to 

appear on the general election ballot affects not only the party’s rights, but also the First 

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Amendment rights of voters,” Blackwell, 462 F.3d at 587, courts have found that burdens of this 

kind are severe, see, e.g., Anderson, 460 U.S. at 793-94 (“A burden that falls unequally on new 

or small political parties . . . impinges, by its very nature, on associational choices protected by 

the First Amendment. It discriminates against those candidates-and of particular importanceagainst those voters whose political preferences lie outside the existing political parties.”). 

In Brunner, for example, this Court found that requirements of 100 days and signatures of 

.5% of the voters from the last gubernatorial primary imposed a severe, unconstitutional burden. 

Brunner, 567 F.Supp.ed at 1014. The new requirements do not address the concerns identified in 

that case. In fact, one could argue that they are worse. In exchange for moving the deadline 10 

days closer to the election, the legislature has decided to double the number of signatures 

required. As the Sixth Circuit stated in Blackwell, “the restrictions at issue in this case serve to 

prevent a minor political party from engaging in the most fundamental of political activitiesrecruiting supporters, selecting a candidate, and placing that candidate on the general election 

ballot in hopes of winning votes and ultimately, the right to govern.” Blackwell, 462 F.3d at 590. 

A minor party must collect a large number of signatures 90 days before the primary, and 279 

days before the general election.4

 These requirements limit the ability of the party to campaign, 

to recruit members, and to participate in the most basic of democratic processes. 

The ultimate goal of any political party is to govern. Ballot access is fundamental to 

achieving this goal and preserving the autonomy of political parties. Yet these requirements 

impose a tremendous burden on those parties that seek to field candidates for election, but may 

have fewer resources than the two major parties. See Wood v. Meadows, 207 F.3d 708, 711 (4th 

Cir. 2000) (noting that “courts have subjected to searching scrutiny state laws requiring both 

 

4

 These numbers are based on H.B. 194 and the assumption that the 2012 primary will occur in May 2012 as 

outlined in the bill. 

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party primary candidates and independent candidates to announce their candidacies by the same 

March deadline, well prior to the primary elections”); Council of Alternative Political Parties v. 

Hooks, 121 F.3d 876, 881 (3d Cir. 1997) (finding that early spring filing deadline of April 10, 

even with an extremely low signature requirement, unconstitutionally burdened First 

Amendment rights of minor political parties and their supporters). Thus, this Court finds that the 

burden imposed by the state laws at issue is severe, and strict scrutiny is required. 

b. The State’s Justification 

Next, this Court must consider the State’s justification for the laws in order to determine 

if they are “narrowly drawn to advance a compelling state interest.” Burdick, 504 U.S. at 434. 

Ohio makes two main arguments to support the new laws. First, it argues that these requirements 

are justified because the state’s statutory requirements for elections are numerous and timeconsuming. Due to “all of this work,” the State asserts, its requirements are reasonable. Such 

justification is inadequate. Quite simply, having a lot of work is not an explanation for severe 

burdens on constitutional rights. While it may reasonable to assume that the State needs 90 days 

to process the paperwork, it does not further a compelling state interest. See Blackwell, 462 F.3d 

at 593. 

Second, the State argues that it has an interest in ensuring that political parties have a 

modicum of support, which helps avoid confusion, deception, and frustration in the democratic 

process. The Supreme Court and the Sixth Circuit have recognized that these are viable state 

interests. See Timmons v. Twin Cities Area New Party, 520 U.S. 351, 363-4 (1997); Lawrence v. 

Blackwell, 430 F.3d 368, 375 (6th Cir. 2005). Nevertheless, the State has not explained how 

early primary deadlines and large signature requirements further these goals. The connection 

between early deadlines and avoiding confusion is unclear, as is how keeping parties off the 

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ballot eliminates frustration in the democratic process. It seems equally likely that citizens may 

be frustrated by the limited options available to them at the ballot box. While this Court will not 

impose a view of democracy on the State, it would seem that the State and its citizens have an 

interest in a vibrant political discourse that seeks new solutions to intractable problems. Political 

parties have a First Amendment right to present their ideas to an eager public, and the public has 

a First Amendment right to listen to party platforms and select the most compelling. The State’s 

laws do not further, but instead significantly inhibit the furtherance of these goals. 

The State urges this Court to follow a recent Eighth Circuit case, Green Party of 

Arkansas v. Martin, No. 10-3106, 2011 U.S. App. LEXIS 16365 (Aug 9. 2011 8th Cir.). In that 

case, the Eighth Circuit upheld an Arkansas law that required a new political party to obtain the 

signatures of 10,000 registered voters during a ninety-day period of time chosen by the party. 

This Court does not find the factual background of that case analogous to the current situation. 

The dual concerns implicated in this case—the First Amendment rights of parties and of voters—

are particularly acute because Ohio has a long history of excluding minor parties from 

mainstream political discourse. See Blackwell, 462 F.3d at 589-90 (noting that of the eight most 

populous states, Ohio has the lowest number of minor political parties on its ballots). The 

absence of these minor parties does not reflect an absence of diversity, but instead the stifling 

impact of restrictive ballot access laws. Ohio’s history compels this Court to approach the new 

laws with a healthy degree of skepticism. See Storer v. Brown, 415 U.S. 724, 742 (1974) (noting 

that “[p]ast experience will be a helpful, if not always an unerring, guide” to determine the 

burden that election laws impose); Blackwell, 462 F.3d at 589-90 (noting that “a historical record 

of parties and candidates being unable to meet the state’s ballot-access requirements is a helpful 

guide in determining their constitutionality”). Accordingly, since the State has not explained 

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how the deadline and the signature requirement are narrowly tailored, this Court finds that this 

combination violates the First Amendment to the Constitution. 

2. Irreparable Harm 

 The irreparable harm to the Libertarian Party and its candidates is denial of access to the 

ballot. This Court finds that this constitutes irreparable injury that is not compensable by 

monetary damages. Thus, injunctive relief is appropriate. 

3. Harm to Others and the Public 

 The harm to others and the public is the damage to “political dialogue and free 

expression” that is done when political parties are unnecessarily restricted from participating in 

the public discourse. Blackwell, 462 F.3d at 594. In this case, the State has not shown that the 

laws at issue further compelling state interests. In fact, they inhibit the ability of the citizens of 

Ohio to organize into political parties and to make their voice heard at the level necessary to 

effect political change. 

4. Balancing the Harms 

 In sum, each of the four factors counsels in favor of granting a preliminary injunction. 

The State is enjoined from enforcing H.B. 194’s changes to O.R.C. §§ 3501.01(E) and 

3517.01(A)(1). The State has repeatedly assured this Court that the LPO will appear on the 

ballot in the November 2011 elections, and that individual candidates will be identified as 

candidates of the Libertarian Party of Ohio. Thus, the State should have no problem complying 

with this Court’s order in 2011. This Court will not instruct the State how to manage its 

 

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elections in 2012, but requires it to take the steps to enact ballot access laws that address the 

constitutional deficiencies identified here, in Brunner, and in Blackwell. 

IT IS SO ORDERED. 

 s/Algenon L. Marbley 

 Algenon L. Marbley 

 United States District Judge 

Dated: September 7, 2011 

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